Former chief White House ethics lawyer: Clinton Foundation controversy is just a distraction from bigger issue

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Disclosure statement

My book on campaign finance reform titled Taxation only with Representation: The Conservative Conscience and Campaign Finance Reform (2016) was funded by Harvard University and by Take Back our Republic, a campaign finance reform group. I am a board member of Take Back our Republic.
I am receiving no compensation for these activities.
I have endorsed Hillary Clinton for president but I am not working for or receiving any compensation from any candidate or campaign. I am a member of the Republican Party.
I am representing pro bono several congressional candidates in a FEC and federal court case seeking to strengthen federal regulation of Super PACs

Hillary Clinton’s critics claim that federal ethics laws were broken when her subordinates at the State Department arranged meetings and other favors for donors to the Bill and Hillary Clinton Foundation.

Evidence is still surfacing as to who at the State Department did what and why. But as a former chief White House ethics lawyer in the Bush administration, I can tell you that allegations of favoritism for donors is nothing new. There were plenty such allegations during the Bill Clinton administration. If nothing changes, I believe it will be more of the same in a Hillary Clinton administration.

As I illustrate in my book, “Getting the Government America Deserves,” there was also favoritism for donors in the Reagan administration and both Bush administrations. Same for Congress over many years. The same is arguably true for the Obama administration. One case in point: access to staff in the White House and Department of Energy granted to investors in Solyndra Solar Energy Company. The Clinton Foundation may be a novel twist to an old problem, but donors get high-level access every day in Washington.

The Clinton Foundation is a marginally relevant side show in the gigantic multibillion dollar circus of American campaign finance. Almost all American politicians depend upon money to get elected, and almost all consciously or unconsciously do favors for their donors. Corruption is eating away at our republic. The media’s obsession with the indirect ways in which a single charitable foundation advances a single candidate’s career misses the point.

Clinton’s critics and the candidate herself should instead focus on what American voters of all political convictions really want: less influence for big money in American government.

Problems at state

Evidence is emerging that some Clinton Foundation donors may have gotten special treatment. The conservative organization Judicial Watch sued to have State Department emails released. Independent journalists who reviewed the documents say they suggest meetings were arranged between Clinton Foundation donors and U.S. ambassadors abroad.

But who are these ambassadors?

Many of them – particularly those holding ambassadorial posts in high-profile countries – are President Obama’s campaign contributors rather than experienced diplomats. Why? Because that is exactly the way these posts were doled out for decades before by Democratic and Republican presidents alike.

In my experience, foreign government officials roll their eyes when dealing with U.S. ambassadors, many of whom are more experienced in throwing money around (and perhaps throwing good parties) than in diplomacy. Speaking the language of a country where an ambassador represents the United States is too often a novelty in a diplomatic corps dominated by the language of money.

Should we be “shocked” at favoritism allegedly shown to Clinton Foundation donors at the State Department? Yes, but in the same way we should be shocked at defense contractors and oil companies getting ambassadors to arrange special introductions in Middle Eastern countries. The same way we should be shocked when American banks get U.S. government agencies to go easy on bank regulations. Or when trial lawyers donate millions to political campaigns while litigation reform stalls in Congress.

News about the Clinton Foundation and allegations of State Department favoritism is the latest iteration of an old pay-to-play story. Proving that Clinton’s aides went too far would be difficult under existing law, particularly after the Supreme Court recently narrowed the reach of the notoriously vague “honest services” statute. Almost nobody is criminally or even civilly charged for bestowing favors in return for campaign contributions. The fact that donors get preferential access, and sometimes policy accommodations in Washington, however, has alienated a great many ordinary voters from a government that is supposed to represent all Americans.

Advice for Clinton

It is clear to me what Hillary Clinton must do if she wants to win the job of president and serve effectively.

First, Clinton should promise now that her family will sever all ties with the Clinton Foundation if she is elected. This means herself, former President Bill Clinton and Chelsea Clinton resigning from the board of the foundation and changing the name of the foundation. If they don’t, there are too many past donors to the Clinton Foundation for the family tie not to create continuing controversy through all four (or eight) years of a Clinton administration.

Every time one of these donors appears to get anything from the White House or any other part of the government, the media will pounce, Congress will start an investigation and self-righteous politicians will express “outrage” at the apparent deference to donors. Clinton does not need this distraction if she hopes to accomplish even a small fraction of what she has promised in her campaign.

Second, Clinton needs to get serious about campaign finance reform. This should not be a partisan issue. Many political conservatives such as myself support reform and are tired of hearing Democrats blame Republicans for the problem and vice versa.

Protesters in front of the U.S. Supreme Court building, on the anniversary of the Citizens United decision.REUTERS/Jonathan Ernst

Of course the Supreme Court should stop obstructing reform. Many of us believe that the Citizens United ruling that struck down the 2000 McCain Feingold Act was blatant judicial activism. But there is plenty that the president and Congress can do that the Supreme Court will not strike down, such as tax credits for small donors to political campaigns. We also need a lot more disclosure of dark money in politics (at least the Clinton Foundation discloses the names of most of its donors).

Of course there have been foreign donors to the Clinton Foundation, as there are to major think tanks in Washington. Anyone who doesn’t think foreign money makes its way into U.S. political campaigns is exceedingly naive.

Elected officials should not depend upon, or be beholden to, big donors to charitable foundations, political campaigns or the shadow groups that support political campaigns. The intent of the drafters of the Constitution was that elected officials depend instead upon the people who elect them. The next president should work with reform-minded Democrats and Republicans to make all variations of the pay-to-play game in American politics a part of our past.

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Democratic U.S. presidential candidate Hillary Clinton speaks to the General Conference of the African Methodist Episcopal Church during their annual convention at the Pennsylvania Convention Center in Philadelphia, Pennsylvania, July 8, 2016.
Charles Mostoller/Reuters